Epps v. Commonwealth

• Decision Date: 13 June 1975
• Docket Number: No. 740949,740949
• Parties: Thomas James EPPS, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 64

216 S.E.2d 64

216 Va. 150

Thomas James EPPS, Jr. v. COMMONWEALTH of Virginia.

Record No. 740949.

Supreme Court of Virginia.

June 13, 1975.

Albert L. Fary, Jr., Portsmouth, for plaintiff in error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

The defendant, Thomas James Epps, Jr., was found guilty by a jury, and sentenced to ten years imprisonment by the trial court, as a principal in the second degree, upon an indictment under Code § 18.1--16 charging that he 'feloniously attempt(ed) to kill and murder George A. Cipra.' We granted a writ of error which presents issues involving double jeopardy, sufficiency of the evidence, misdirection of the jury, and validity of the verdict. We affirm.

On December 29, 1972, about 9:10 a.m., the First Virginia Bank of Nansemond, the deposits of which were insured by the Federal Deposit Insurance Corporation, was robbed of about $34,000 by four men, whose faces were partly covered. At the time, Allen Watson, the bank's president, was standing near the bank's main lobby talking with George A. Cipra, an off-duty detective of the Nansemond Police Department employed by the bank as a security officer, and who was dressed in 'plain clothes.' As Watson observed the armed men enter the bank, he made an exclamation and jumped into a nearby office.

Cipra, reacting to Watson's comment, turned toward the main lobby and observed three of the men, one being the defendant, in a crouched 'duck-walk' position moving at a fast pace along the tellers' cages. Two of the men then jumped onto the tellers' counter and Cipra reached to his belt for his .38 caliber pistol. At the same time, Cipra observed the fourth man, pointing a 'long barrel blue steel revolver' directly at him, appear from around a 'blind corner' in the bank, ten to twelve feet away. Cipra then dove to the floor of another nearby office, heard a shot while he was in midair, and drew his revolver as he crawled behind a desk. He was not struck by the bullet, which lodged in a wall three feet above the floor and near the point of his dive.

The defendant then joined the gunman at the door of the office where Cipra was hiding. Cipra was told '(c)ome out, I am going to kill you' and '(c)ome out or I will kill you.' Concerned for the safety of other bank employees, Cipra secreted his gun in a drawer of the desk and emerged from the office where he was searched by the defendant and the gunman. He was then ordered into the bank vault with the officers and other bank personnel. Once in the vault, Cipra tried to observe closely the gunman, who then stated that if Cipra looked 'at him one more time, he was going to blow (his) head off.' In the vault, Cipra was 'face to face,' at a distance of two to three feet, with the defendant, who was having difficulty keeping his face covered with a turtleneck sweater. He observed that the defendant was carrying a 'small caliber steel stubb-nose (sic) revolver.' At the trial, Cipra identified the defendant as one of the robbers.

During his testimony, the defendant denied participation in the crime, claiming he was in Norfolk with a 'girlfriend.'

Double Jeopardy.

The arrest warrant was executed within three weeks of the crime. The defendant was indicted during the trial court's July, 1973 term, tried in November, 1973, and sentenced in April, 1974.

On March 27, 1973, the defendant was tried in the United States District Court for the Eastern District of Virginia under a two-count indictment for violation of the Federal Bank Robbery Act. ¹ The first count read, in part, that the defendant 'by force and violence and by intimidation, did take approximately $34,000.00 in money belonging to . . . the First Virginia Bank of Nansemond, . . . and (the defendant), in committing the aforesaid offense, did put in jeopardy the life of George Cipra and others . . . by means and use of a dangerous weapon, that is, a pistol. (18 U.S.C. 2113(d)).' Epps was acquitted of the foregoing charges but was convicted of possession of stolen money, 18 U.S.C. § 2113(c), as alleged in the second count of the indictment. Cipra did not testify in that case.

The defendant contends that his acquittal of the federal robbery charge bars his subsequent state prosecution for attempted murder, under the principles of double jeopardy. He argues that the assault on Cipra was a necessary element of both the federal charge asserted in the first count of the indictment and the state charge of attempted murder, and, therefore, acquittal of the federal charge prohibited the state from trying him again for the same assault. We disagree with the defendant's contention. He has misconstrued the concept of double jeopardy.

][1,2] The double jeopardy clauses of the United States and Virginia Constitutions, as related to the present case, bar prosecution of a criminal charge against an accused already convicted of an identical or lesser included offense.' Rouzie and Boudreau v. Commonwealth, 215 Va. 174, 176, 207 S.E.2d 854, 856 (1974). Offenses are identical if the facts required to convict of one would necessarily convict of the other. Id. But two or more distinct and separate offenses may grow out of a single incident, warranting the prosecution and punishment of an accused for each. Comer v. Commonwealth, 211 Va. 246, 250, 176 S.E.2d 432, 435 (1970). It is the identity of the offense, and not the act, which is referred to in the constitutional guaranty against double jeopardy. Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964).

One of the tests applied to determine whether two offenses are identical is whether each offense requires proof of an additional fact which the other does not, even though some of the same acts may be necessary to prove both. If proof of an additional fact is required, an acquittal or conviction of either offense does not exempt the defendant from prosecution and punishment under the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); Arrington v. Commonwealth, 87 Va. 96, 100, 12 S.E. 224, 225, 10 L.R.A. 242 (1890); 1 Wharton's Criminal Law and Procedure § 144 (R. Anderson 1957). Accord, Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

The elements of the crimes involved here must be compared. Subsections (a) and (b) of the Federal Bank Robbery Act, on one hand, and subsection (d) on the other, note 1 Supra, define one offense committed in two ways, that is, robbery of an insured bank, under the aggravated circumstances of jeopardizing the life of 'any person' in the course of the robbery. Annot., 59 A.L.R.2d 946, 965. One of the necessary elements of this offense is the taking of money from an insured bank.

The elements of attempted murder in Virginia are, first, an intent to kill and, second, the doing of some direct act toward the consummation of the killing, but falling short of the accomplishment of the ultimate design. Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974). See Johnson v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 573 (1968).

Therefore, the offense of attempted murder requires proof of an intent to kill, a fact not necessary to sustain the charge of aggravated federal bank robbery; and, aggravated federal bank robbery requires proof of robbery of an insured bank, facts not required for proof of attempted murder.

Applying the foregoing test to the facts of this case, it is apparent that the state offense requires proof of an additional fact not necessary for conviction of the federal offense. Accordingly, the constitutional prohibition against double jeopardy does not bar this prosecution for attempted murder, even if, as the defendant argues, the same assault is an element in the robbery ² and attempted murder charges.

That this is so is demonstrated by application of the foregoing test set forth in Blockburger and Arrington, which emanated from Morey v. Commonwealth, 108 Mass. 433 (1871). In Morey, which involved an analogous set of facts, it was held that a conviction upon an indictment for lewd and lascivious cohabitation did not bar a conviction of the same defendant of adultery, even though proof of the same acts of unlawful intercourse were presented at both trials. The basis of the decision was that although a single act may be an offense against two statutes, if each statute requires proof of an additional fact, which the other does not, an acquittal or conviction under either is no bar to conviction under the other. 108 Mass. at 434.

The defendant is also incorrect in his contention that his conviction of possession of stolen money, 18 U.S.C. § 2113(c), note 1 Supra, 'is a lesser included offense of robbery and in itself would be a bar to the subsequent prosecution of any greater offense (which has assault as an ingredient).' Subsection (c) makes it a separate substantive offense, not a lesser included offense, knowingly to receive or possess property stolen from a bank in violation of the Federal Bank Robbery Act. Heflin v. United States,358 U.S. 415, 419, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). See Annot., 12 A.L.R. Fed. 664, 681--86.

We also reject the defendant's argument that Code § 19.1--259 bars this prosecution for attempted murder. That statute provides, in part, that 'if the same act be a violation of both a State and a federal statute a prosecution . . . under the federal statute shall be a bar to a prosecution . . . under the State statute.' This is not exactly a defense of former jeopardy, yet it amounts to such a defense in purpose and desired effect. Sigmon v. Commonwealth, 200 Va. 258, 263, 105 S.E.2d 171, 175--76 (1958). As we have demonstrated, Supra, the defendant has not committed the 'same act' within the meaning of...